DOCKETED Docket Number: 21-BSTD-02 Project Title: 2022 Energy Code Update CEQA Documentation TN #: 237462 Earthjustice and Sierra Club Scoping Comments on EIR for Document Title: 2022 Update to Building Code Description: N/A Filer: System Organization: Earthjustice/Matthew Vespa Submitter Role: Public Submission Date: 4/15/2021 1:51:07 PM Docketed Date: 4/15/2021 Comment Received From: Matthew Vespa Submitted On: 4/15/2021 Docket Number: 21-BSTD-02 Earthjustice and Sierra Club Scoping Comments on EIR for 2022 Update to Building Code Additional submitted attachment is included below. Docketed in 21-BSTD-02 April 15, 2021 Docket No. 21-BSTD-02 California Energy Commission 1516 Ninth Street Sacramento, California 95814 Re: Scoping Comments on the Environmental Impact Report for the Proposed 2022 Update to Building Energy Efficiency Standards (Title 24, Part 6) Earthjustice and Sierra Club appreciate the opportunity to provide comments on the scope of the Environmental Impact Report (“EIR”) for the 2022 Update to the Building Energy Efficiency Standards (“2022 Building Code” or “Project”). To the extent the 2022 Building Code proposes to include gas appliances in the standard designs for new construction, the greenhouse gas (“GHG”), energy, air quality and public health impacts from the 2022 Building Code would be significant under the California Environmental Quality Act (“CEQA”). These impacts can be mitigated through inclusion of efficient electric appliances such as heat pump space and water heating as a feasible alternative to continued reliance on gas appliances. I. The Energy Commission Should Evaluate Impacts from the 2022 Building Code Against the Actual Environment, Not the Existing Regulatory Regime. At the April 9th Scoping Meeting, Energy Commission staff indicated potential impacts from the 2022 Building Code would be evaluated based on a comparison with the regulatory standards set forth in the 2019 Building Code. This approach should not be used because it improperly understates impacts from the proposed 2022 Building Code. When the project is a revision or an update to a plan, policy, or regulation, the agency should not analyze the project’s potential impacts simply by comparing the project to the existing regulatory framework. Env’t Plan. & Info. Council v. Cnty. of El Dorado (1982) 131 Cal.App.3d 350, 353 (“EPIC”). Rather, CEQA requires the agency to consider the impacts of the revision on the “existing physical conditions in the affected area.” Id. at 355 (emphasis added); see also Christward Ministry v. Super. Ct. (1986) 184 Cal.App.3d 180, 190 (“comparison of potential impacts under the amendment with potential impacts under the existing general plan is insufficient”); Watsonville Pilots Assn. v. City of Watsonville (2010) 183 Cal.App.4th 1059, 1080 (“The EIR must evaluate the environmental impact of a new general plan on the ‘actual environment’ rather than comparing it to the impact of the preexisting general plan.”). For example, in EPIC, the county argued that two updated area plans would not have significant effects on the environment because they established population limits far lower than those allowed under the existing plans. 131 Cal.App.3d at 357. The county reasoned that potential environmental impacts from the updated plans as compared to the existing plans would “intuitively . decrease” by the same percentage as the decreased population limits. Id. The court held that simply comparing the updated plans with the existing plans was insufficient: “[CEQA] evinces no interest in the effects of proposed general plan amendments on an existing general plan, but instead has clearly expressed concern with the effects of projects on the actual environment upon which the proposal will operate.” Id. at 355 (emphasis added). The 2022 Building Code sets the energy efficiency requirements applicable to newly constructed buildings as well as additions and alterations to existing buildings. In the case of new construction and additions, the existing physical environment is one where these buildings do not yet exist. To comply with CEQA, the Energy Commission should assess the impacts of new construction under proposed 2022 Building Code requirements compared to a scenario where the construction has not occurred. Because the Commission is responsible only for setting standards for determining building energy performance, only the impacts associated with building energy requirements need be assessed. The extent to which the 2022 Building Code represents an incremental improvement over the 2019 Building Code is irrelevant because this has no bearing on existing environmental conditions. CEQA is intended “to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return.” Cleveland Nat’l Forest Found. v. San Diego Ass’n of Gov’ts. (2017) 3 Cal. 5th 497, 503 (citation omitted). In proposing to assess impacts of the 2022 Building Code based on the extent to which they represent improvements over the 2019 Building Code and not their actual impact on the physical environment, the EIR would improperly minimize the climate, air quality and public health impacts of new construction that continues to rely on fossil fuels in direct contravention of CEQA’s informational mandates. Laurel Heights Improvement Ass’n v. Regents of Univ. of California (1988) 47 Cal. 3d 376, 390 (“The foremost principle under CEQA is that the Legislature intended the act ‘to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.’”) (quotation omitted). II. The EIR Must Account for Advances in the Regulatory and Scientific Understanding of the Critical Role of Building Electrification in Addressing the Climate, Air Quality, Energy and Public Health Impacts of Buildings. CEQA requires public agencies “to ensure that such analysis stay in step with evolving scientific knowledge and state regulatory schemes.” Cleveland Nat’l Forest Foundation, 3 Cal. 2 5th at 504. Accordingly, even if reliance on the 2019 Building Code as the baseline from which to evaluate project impacts was permissible, the EIR must still account for the recent regulatory and scientific understanding of the critical role and urgency of building electrification in meeting California’s decarbonization objectives since adoption of the 2019 Building Code. The Energy Commission adopted a negative declaration for its environmental review of the 2019 Building Code in May 2018.1 Since that time, the Energy Commission has recognized that “[i]f the decisions made for new buildings result in new and continued fossil fuel use, it will be that much more difficult for California to meet its GHG emission reduction goals.”2 Similarly, in a resolution adopted last year, the California Air Resources Board (“CARB”) recognized the importance of “electrification of appliances, including stoves, ovens, furnaces, and space and water heaters, in the 2022 code cycle for all new buildings in order to protect public health, improve indoor and outdoor air quality, reduce GHG emissions, and set California on track to achieve carbon neutrality.”3 CARB also recognized “the conclusion of recent studies that 100 percent electrification of natural gas appliances in California would result in significant health benefits and reduction of greenhouse gas (GHG) emissions from natural gas combustion in residential buildings.”4 In its Building Decarbonization proceeding, the California Public Utilities Commission (“CPUC”) has also recognized the problems with continued investment in fossil fuel infrastructure, directing all incentives for the Building Initiative for Low-Emissions Development (“BUILD”) Program to “new residential housing that is at a minimum, all-electric” to avoid “the risk of locking in new natural gas assets that could be unused or underutilized before the end of their life.”5 Recent studies examining pathways to carbon neutrality significantly accelerate the needed pace of building electrification. For example, Southern California Edison’s (“SCE”) Clean Power and Electrification Pathway – Pathway 2045 reaches carbon neutrality in part by achieving efficient electric space and water heating in roughly one third of all California buildings by 2030.6 As concluded in the CEC Report, The Challenge of Retail Gas in California’s Low-Carbon Future, “[i]f building electrification is delayed, missing the lower-cost opportunities for all-electric new construction and replacement of equipment upon failure, there is a greater risk that expensive early retirement of equipment may be needed, or that the climate 1 CEC, Docket 17-BTSD-02, Resolution 18-05-0-2, Resolution Adopting Negative Declaration and Proposed Regulations (May 9, 2018). 2 CEC, 2018 Integrated Energy Policy Report Update, Vol. II, at 26 (adopted Feb. 20, 2019) (“2018 IEPR Update”), https://efiling.energy.ca.gov/getdocument.aspx?tn=227391 3 CARB Resolution 20-32, California Indoor Air Quality Program Update, at 3 (Nov. 19, 2020), https://ww3.arb.ca.gov/board/res/2020/res20-32.pdf. 4 Id. at 2. 5 CPUC, D.20-03-027, Decision Establishing Building Decarbonization Pilot Programs, at 65 (Mar. 26, 2020), https://docs.cpuc.ca.gov/PublishedDocs/Published/G000/M331/K772/331772660.PDF. 6 SCE, Pathway 2045 – Update to the Clean Power and Electrification Pathway, at 11 (Nov. 2019), https://www.edison.com/content/dam/eix/documents/our-perspective/201911-pathway-to-2045-white- paper.pdf. 3 goals could be